I have a pretty broad view of presidential power to use military force abroad without congressional authorization. On that view, which is close to the past views of the Office of Legal Counsel, the planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before. There are many reasons why it is a stretch even under OLC precedents. The main ones, as I alluded to a few days ago, are (1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the Commander in Chief has invoked since the Korean War to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears… to be disserved rather than served by a military strike in Syria; and (3) a Syria strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important security treaty organization commitments (NATO)….
All of which raises the questions: Why is President Obama going to act unilaterally? Why doesn’t the man who pledged never to use force without congressional authorization except in self-defense call Congress into session to debate and authorize the use of force in Syria? Why doesn’t he heed his own counsel that “[h]istory has shown us time and again . . . that military action is most successful when it is authorized and supported by the Legislative branch,” and that it is “always preferable to have the informed consent of Congress prior to any military action”? Why is he instead rushing to use force in a way that will set a novel constitutional precedent for presidential unilateralism that will far outlive his presidency? Since U.S. intervention in Syria portends many foreseeably bad consequences, and because there is so little support in the nation for this intervention, why not get Congress on board – not just to legitimate the action, but also to spread political risk? Why exacerbate the growing perception – justified or not – of a presidency indifferent to legal constraints? Why not follow the example of George H.W. Bush, who sought and received congressional authorization for the 1991 invasion of Iraq, or George W. Bush, who did the same for the 2003 invasion of Iraq? Or to take an example more on point, why not follow David Cameron, who (embarrassingly for the President) recently called Parliament into session to debate and legitimate Britain’s planned involvement?
—excerpted from Jack Goldsmith’s blogpost at Lawfareblog. Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, where he teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law, and conflict of laws. http://www.jackgoldsmith.org/